{"id":14977,"date":"2019-11-17T10:43:49","date_gmt":"2019-11-17T16:43:49","guid":{"rendered":"http:\/\/milesfortis.com\/?page_id=14977"},"modified":"2020-07-04T13:16:14","modified_gmt":"2020-07-04T18:16:14","slug":"unbannable-arms","status":"publish","type":"page","link":"https:\/\/milesfortis.com\/?page_id=14977","title":{"rendered":"Unbannable Arms?"},"content":{"rendered":"
\n

Unbannable Arms?<\/h1>\n
By\u00a0Joseph Blocher<\/a>\u00a0<\/span>on\u00a0Friday, November 15, 2019<\/a><\/span><\/div>\n<\/div>\n
\n

When it comes to the \u201cArms\u201d protected by the Second Amendment, the conceptual space is typically divided into two categories. Some weapons, like those that are \u201cdangerous and unusual,\u201d can be banned without raising any constitutional problems. For those that are\u00a0not<\/em>\u00a0dangerous and unusual, the government has to satisfy some requisite level of scrutiny. But\u2014and I hate to do this again, having just made\u00a0a conceptually similar argument about the Two Part test<\/a>\u2014there also seems to be a third category: Weapons that\u00a0cannot\u00a0<\/em>be banned without categorically violating the Second Amendment.<\/p>\n

Heller\u00a0<\/em>itself provides a ready example. The Court there applied no particular form of means-end scrutiny, instead writing that DC\u2019s \u201chandgun ban amounts to a prohibition of an entire class of \u2018arms\u2019 that is overwhelmingly chosen by American society for that lawful purpose.\u201d The Court concluded that handguns have a unique relationship to the core Second Amendment interest in self-defense, and no prohibition on them can be justified:<\/p>\n

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e.,<\/em>\u00a0long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.\u00a0.\u00a0.\u00a0. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.<\/p><\/blockquote>\n

The availability of other weapons for self-defense\u2014long guns, for example\u2014was therefore not enough to save DC\u2019s law.<\/p>\n

What arguably emerges from\u00a0Heller<\/em>, then, are not two but\u00a0three<\/em>\u00a0categories of arms. \u201cDangerous and unusual\u201d weapons are categorically excluded from coverage and can be banned without raising any constitutional concerns. They are the equivalent of libel or securities fraud under the First Amendment. Weapons \u201cin common use\u201d are covered by the Second Amendment, so bans involving them are subject to scrutiny\u2014a prohibition on high-powered rifles or high capacity magazines, for example, must be appropriately tailored to a sufficient government interest. Finally, within the general set of constitutionally covered common-use weapons, some classes\u00a0cannot\u00a0<\/em>be banned, regardless of the efficacy of the law or the government interests involved. This last category includes handguns, which\u00a0Heller\u00a0<\/em>emphasized have a unique connection to self-defense. Are there other classes of arms that are similarly immune from bans? (I try to unpack that and related questions in \u201cBans<\/a>,\u201d which is forthcoming soon in the\u00a0Yale Law Journal<\/em>\u00a0and from which some of this discussion is drawn.)<\/p>\n

Some judges seem to have concluded that\u00a0any\u00a0<\/em>arm (or \u201chardware\u201d) in common use is immune to prohibition. In\u00a0Duncan v. Becerra<\/em><\/a>\u2014an unusual opinion involving California\u2019s restriction on high capacity magazines, which, it\u2019s safe to say, will not be the last word on the subject\u2014the district court concluded that\u00a0Heller\u00a0<\/em>provides a test that is \u201csimple\u201d and \u201ccrystal clear.\u201d According to the judge in that case, \u201cIt is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are \u2018yes,\u2019 then the test is over.\u201d<\/p>\n

The test is simply stated, perhaps, but hardly \u201ccrystal clear\u201d in practice, for reasons that Eugene Volokh and many others have pointed out ever since\u00a0Heller<\/em>. What counts as \u201ccommon\u201d? For that matter how does one separate one set of \u201chardware\u201d from another? For purposes of evaluating constitutionality in a case involving high-capacity magazines, does one count all magazines over 10 rounds? 20?<\/p>\n

The definitional problems are even harder when one tries to apply them to firearms. Handguns might seem like a natural category, and maybe it is. But if one tries to get much more specific than that, the divisions feel less like a taxonomic exercise and more like an effort to list cosmetic features. Indeed, one common line of argument against assault weapons bans is that they are an irrational effort to target scary-looking guns. But that definitional argument cuts both ways. If would-be regulators can\u2019t define a class of arms with requisite precision, can gun rights advocates do any better?<\/p>\n

Fundamentally, though, the problem has less to do with definitions than it does with constitutional principle. Under what plausible account of the right to keep and bear arms should a weapon\u2019s commonality render it immune to prohibition? What Second Amendment\u00a0value\u00a0<\/em>does that protect? Adopting a rule that is \u201ccrystal clear\u201d but tracks no underlying constitutional principle means not just elevating form over substance, but actually ignoring the latter.<\/p>\n

In their concurring opinion in\u00a0Caetano<\/em>, Justices Alito and Thomas wrote that \u201cthe right to bear other weapons is \u2018no answer\u2019 to a ban on the possession of protected arms,\u201d citing\u00a0Heller<\/em>. But the cited passage from\u00a0Heller\u00a0<\/em>(the one quoted above) says only \u201c[i]t is no answer to say \u2026 that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e.<\/em>, long guns) is allowed.\u201d And since\u00a0Heller\u00a0<\/em>also emphasizes that \u201c the American people have considered the handgun to be the quintessential self-defense weapon,\u201d the passage seems to be saying only that there is no adequate alternative to\u00a0handguns<\/em>, not that the Second Amendment forbids any consideration of adequate channels of self-defense.<\/p>\n

If handguns are the quintessential self-defense weapon<\/a>, then it seems clear that long guns\u2014including semi-automatic rifles\u2014cannot be. They might be important, and they might be constitutionally protected, but that doesn\u2019t make them immune to prohibition. As the D.C. Circuit put it in\u00a0Heller II<\/em>:<\/p>\n

We simply do not read\u00a0Heller<\/em>\u00a0as foreclosing every ban on every possible sub-class of handguns or, for that matter, a ban on a sub-class of rifles. . . . [T]he Court in\u00a0Heller<\/em>\u00a0held the District\u2019s ban on all handguns would fail constitutional muster under any standard of scrutiny because the handgun is the \u201cquintessential\u201d self-defense weapon. The same cannot be said of semi-automatic rifles.<\/p><\/blockquote>\n

In short, the fact that the handgun ban in\u00a0Heller\u00a0<\/em>went too far and was\u00a0per se\u00a0<\/em>unconstitutional does not mean that all \u201cclass of arms\u201d rules should be subject to the same treatment.<\/p>\n

I suspect that\u00a0per se<\/em>\u00a0rules will continue to gain support among some judges, especially those who see themselves as limiting judicial discretion and providing principled protection for gun rights. I have my doubts that invocation of \u201cbans\u201d will deliver on either of those values.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Unbannable Arms? By\u00a0Joseph Blocher\u00a0on\u00a0Friday, November 15, 2019 When it comes to the \u201cArms\u201d protected by the Second Amendment, the conceptual space is typically divided into two categories. Some weapons, like those that are \u201cdangerous and unusual,\u201d can be banned without raising any constitutional problems. For those that are\u00a0not\u00a0dangerous and unusual, the government has to satisfy … Continue reading “Unbannable Arms?”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-14977","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages\/14977","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14977"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages\/14977\/revisions"}],"predecessor-version":[{"id":14979,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages\/14977\/revisions\/14979"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14977"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}